Federal Communications CommissionFCC 11-67

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
Comparative Consideration of 37 Groups of Mutually Exclusive Applications
for Permits to Construct New or Modified Noncommercial Educational FM Stations filed in the February 2010 and October 2007 Filing Windows / )
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) / NCE Reserved Allotment Group Numbers 1, 2, 3, 4, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 34; NCE MX Group Numbers 328, 389, 393, 394, and 417

MEMORANDUM OPINION AND ORDER

Adopted: May 2, 2011Released: May 3, 2011

By the Commission:

TABLE OF CONTENTS

Paragraph

I. BACKGROUND...... 1

II. NCE RESERVED FM ALLOTMENTS ……………………………………………………….2

III. GENERAL NCE PROCEDURES ...... 4

A. Section 307(b) -- Threshold Fair Distribution Study……………………………………..5

B. Point System Selection Process………………………………………………………… 7

C. Tie-Breakers…………………………………………………………………………….12

D. Timely Documentation of Comparative Qualifications…………………………………13

IV. POINT SYSTEM DETERMINATIONS...... 14

V. NEXT STEPS...... ….113

VI. ORDERING CLAUSES...... 118

APPENDIX – NCE Reserved FM Allotment Groups

  1. BACKGROUND

1.By this Memorandum Opinion and Order (“Order”), the Commission considers 37 groups of mutually exclusive applications for new or modified noncommercial educational (“NCE”) FM station construction permits.[1] The Commission resolves such conflicting NCE proposals by applying comparative procedures codified in Part 73, Subpart K, of the Commission’s Rules (the “Rules”).[2] This Order uses a point system to tentatively select applications for grant and initiates a 30-day period for filing petitions to deny against the applicants tentatively selected.[3]

  1. NCE RESERVED FM ALLOTMENTS
  1. Each application in Group 1 through Group 34 herein proposes to operate on an existing, vacant FM allotment on Channels 221 through 300 (the “non-reserved FM band”) that has been reserved for NCE use.[4] The Commission reserves a non-reserved FM Band allotment if the petitioner successfully demonstrates that no reserved channel could be used without causing prohibited interference to (1) TV channel 6 stations, or (2) foreign broadcast stations.[5]
  1. In the NCE Second Report and Order the Commission adopted a third test for channel reservation (the “third channel reservation standard”).[6] Under the third channel reservation standard, a reservation proponent must demonstrate that (1) it is technically precluded from using a reserved band channel, and (2) it would provide a first and/or second NCE radio service to at least ten percent of the population within the 60 dBu (1 mV/m) contour of its proposed station, and that such population is at least 2,000 people.[7] The Commission specifically advised prospective NCE applicants that the first or second NCE service requirement remains applicable at the application stage.[8] Therefore, if the third channel reservation standard served as the basis for reservation of the allotment, applicants for that allotment must provide a first or second NCE service to at least ten percent of the population within the proposed station's service area and that population must be at least 2,000 people. Applications which fail to satisfy this requirement are eliminated and will not proceed to the point system analysis. Allotments reserved by means of the third channel reservation standard are identified in the point system determinations below.
  1. GENERAL NCE PROCEDURES
  1. The Commission’s analysis of mutually exclusive groups of NCE applications generally consists of three main components. First, if applicants propose service to different communities, the Media Bureau (“Bureau”) performs a threshold fair distribution study pursuant to Section 307(b) of the Communications Act of 1934, as amended (the “Act”).[9] The Commission generally has used the population data and applicant certifications submitted in conjunction with Section 307(b) claims to make these comparative determinations. Second, application conflicts not resolved under this “fair distribution” analysis,[10] as well as mutually exclusive groups of applications for vacant FM allotments reserved for NCE use, are compared under an NCE point system,[11] which is a simplified, “paper hearing” process.[12] The Commission generally has awarded the number of points claimed by each applicant in Section IV of its application. Third, if necessary, the Commission makes a tie-breaker determination, based on applicant-provided numbers and certifications contained in Section V of each application. Each of these steps is described in greater detail below.

A. Section 307(b) --Threshold Fair Distribution Study.

  1. When mutually exclusive applications for permits to construct NCE FM stations propose to serve different communities, the Bureau determines whether grant of any of the applications would best further the fair, efficient, and equitable distribution of radio service among communities.[13] An NCE FM applicant is eligible to receive a Section 307(b) preference if it would provide, within the proposed station’s 60 dBu contour, a first or second reserved band channel NCE aural service to at least ten percent of the population (in the aggregate), provided that such service is to at least 2,000 people.[14]
  1. If more than one applicant in a mutually exclusive group qualifies for a Section 307(b) preference, each applicant’s first service population coverage totals are compared.[15] An applicant proposing a first NCE aural service to ten percent of the population and at least 2,000 people will receive a dispositive fair distribution preference over applicants for different communities that would not provide such first service.[16] Such an application also would receive a dispositive fair distribution preference over applicants for different communities that would provide a first NCE aural service to at least 5,000 fewer potential listeners than the next highest applicant’s first service total.[17] If no applicant is entitled to a first service preference, we consider combined first and second NCE aural service population totals and apply the same 5,000-listener threshold. At each stage of the Section 307(b) analysis between applicants for different communities, any applicant that is comparatively disfavored in terms of eligibility or service totals is eliminated. Comparable applicants proceed to the next level of analysis, provided that different communities are still represented in the remaining pool of applicants. The process ends when the Commission determines that none of the remaining applicants can be selected or eliminated based on a Section 307(b) preference, or that each remaining applicant proposes to serve the same community. At that stage, the remaining applicants proceed to a point system analysis.

B. Point System Selection Process.

  1. The Commission compares mutually exclusive groups of NCE FM applications under the point system set forth in Section 73.7003 of the Rules.[18] The NCE point system awards a maximum of seven merit points, based on four distinct criteria.[19] First, three points are awarded to applicants that certify that they have been local and established for at least two years. Applicants with a headquarters, campus, or 75 percent of their board members residing within 25 miles of the reference coordinates of the community of license are considered local. A governmental unit is considered local within its area of jurisdiction. To qualify for localism points based on board composition, the applicant also must certify that its governing documents require that such board composition be maintained. The applicant also must certify that it has placed documentation supporting its certification in a local public inspection file, and that it has submitted that documentation to the Commission. Any applicant awarded localism points in this Order has provided support for its certification. Thus, the specific point system determinations for each group of mutually exclusive applications that follow only discuss an applicant’s documentation if it is insufficient to justify awarding localism points.
  1. Second, two points are awarded for local diversity of ownership if the principal community contours of the applicant’s proposed station and any other station in which any party to the application holds an attributable interest do not overlap.[20] To be awarded such points, an applicant’s governing documents must include a provision to maintain that diversity in the future. Applicants that are organizations governed by state charters that cannot be amended without legislative action are permitted to base the governing document component of their local diversity certifications on other safeguards that reasonably assure that board characteristics will be maintained.[21] Any applicant awarded diversity of ownership points in this Order has submitted copies of pertinent governing documents to support its certification or, for applicants such as state universities that are governed by laws which cannot be amended without legislative action, an appropriate alternative showing. Thus, the specific point system determinations for each group of mutually exclusive applications that follow only discuss an applicant’s documentation if it is insufficient to justify awarding diversity points. An applicant that proposes a full service NCE station that would replace an attributable FM translator may exclude the translator for calculating ownership diversity points if it has pledged to request cancellation of the translator authorization upon the new station’s commencement of operations.[22] The Commission has stated that it will, on a waiver basis, similarly allow applicants to exclude Class D (10 watt) FM stations that will be replaced by the proposed full service NCE station.[23] The Bureau has also extended this waiver treatment to low power FM (“LPFM”) stations.[24]
  1. Third, two points are awarded for certain statewide networks providing programming to accredited schools. These points are available only to applicants that cannot claim a credit for local diversity of ownership.[25]
  1. Fourth, an applicant that proposes the best technical proposal in the group (i.e., proposes service to the largest population and area, excluding substantial areas of water) may receive up to two points. The applicant receives one point if its proposed service area and population are ten percent greater than those of the next best area and population proposals, or two points if both are 25 percent greater than those of the next best area and population proposals as measured by each proposed station’s

predicted 60 dBu signal strength contour.[26] If the best technical proposal does not meet the 10 percent threshold, no applicant is awarded points under this criterion. In considering this criterion, we have generally accepted applicants’ coverage and population claims. We have rounded any numbers expressed in decimals to the nearest whole numbers.

  1. Finally, the Commission tallies the total number of points awarded to each applicant. The applicant with the highest score in a group is designated the “tentative selectee.” All other applicants are eliminated.

C. Tie-Breakers.

  1. Applicants tied with the highest number of points awarded in a particular group proceed to a tie-breaker round, in accordance with Section 73.7003(c) of the Rules.[27] The first tie-breaker for NCE FM applicants is the number of radio station authorizations attributable to each applicant.[28] The applicant with the fewest attributable authorizations prevails. If the tie is not broken by this first factor, we apply a second tie-breaker: the number of radio station applications attributable to each applicant. Applicants are required to include applications for construction permits filed for other aural services prior to the window, the current application, as well as all other applications filed within the window.[29] If that second factor fails to break the tie, we use mandatory timesharing as the tie-breaker of last resort.

D. Timely Documentation of Comparative Qualifications.

  1. The NCE application, FCC Form 340, is certification-based, but requires applicants to document their claims by submitting supporting information both to the Commission and to a local public file.[30] Applicant point claims must be readily ascertainable from timely-filed application exhibits. Certifications which require the applicant to submit documentation, but which are not supported with any such timely submitted documentation, cannot be credited. For example, the Commission herein rejects claims where the applicant certifies that it qualifies for points for diversity of ownership or as an established local applicant but fails to supply supporting information referred to in the certification. Every applicant claiming points for diversity of ownership must certify that the proposed station’s service area would not overlap that of an attributable existing station, that its governing documents require that such diversity be maintained, and “that it has placed documentation of its diversity qualifications in a local public file and has submitted to the Commission copies of that documentation.”[31] Similar certifications and documents are required of applicants claiming points as established local applicants.[32] While there is some flexibility in the type of documentation an applicant may provide, an applicant submitting no timely documentation at all cannot have made a valid certification. We have adjusted the points of such applicants downward.
  1. POINT SYSTEM DETERMINATIONS
  1. This Section contains narrative descriptions of our point system analyses in each mutually exclusive proceeding, organized chronologically by assigned group number. The reserved allotment groups (Groups 1-34) are being considered for the first time. In the NCE MX groups, the Bureau or Commission previously considered the group and named a tentative selectee, followed by filings or events which require additional analysis.[33] Unless otherwise noted, each component of the analysis is based on applicant-provided information.[34] We have provided readers with an Appendix that condenses the group-by-group narratives for the groups that follow into chart form for quick reference. A more detailed guide to the Appendix and its use of abbreviations appears at the beginning of that Section.
  1. At the outset, we note that each group of applicants has had an opportunity to resolve application conflicts by settlement.[35] In addition, we note that applicants were required to report their qualifications as of the date of application. Any changes made thereafter may potentially have diminished, but could not enhance, an applicant’s comparative position.[36]
  1. NCE Reserved Allotment Group 1. This group is comprised of eight applications proposing service on vacant Channel 261C3 at Anniston, Alabama. The applicants are: Covenant Communications, Inc. (“Covenant”), Equality Broadcasting Network (“EBN”), The Moody Bible Institute of Chicago (“MBIC”), Serendipity Educational Broadcasting, Inc. (“Serendipity”), Anniston Seventh-Day Adventist Church (“ASDA”), Board of Trustees of Jacksonville State University (“JSU Trustees”), Old Time Gospel Ministries (“OTGM”), and Smile FM (“Smile”). The third channel reservation standard served as the basis for reservation of the instant allotment. Accordingly, each applicant was required to demonstrate that its proposal would provide a first or second NCE service to at least ten percent of the population within the proposed station's service area and to at least 2,000 people. Each applicant has demonstrated compliance with these criteria.[37] Accordingly, the entire group proceeds to a point hearing.
  1. ASDA and JSU Trustees each claim to be eligible for points as established local applicants; the other six applicants do not. EBN, MBIC, Serendipity, ASDA, and Smile claim two points each for diversity of ownership. Serendipity, however, fails to submit any documentation to support its diversity claim, and, accordingly, will not receive points under this criterion. Covenant, JSU Trustees, and OTGM do not claim diversity points. None of the applicants claim points as a statewide network. With respect to technical parameters, Covenant claims that its proposed 60 dBu contour would encompass 3,903 square kilometers with a population of 174,888; EBN, 4,472 square kilometers and 174,215 people; MBIC, 4,850 square kilometers and 216,965 people; Serendipity, 2,915 square kilometers and 204,733 people; ASDA, 3,944 square kilometers and 199,229 people; JSU Trustees, 4,191 square kilometers and 173,668 people; OTGM, 4,544 square kilometers and 164,548 people; and Smile, 1,222 square kilometers and 74,654 people. No applicant is eligible for points under the best technical proposal criterion because MBIC’s proposal to serve the largest area and population does not exceed OTGM’s next best area proposal and Serendipity’s next best population proposal by at least 10 percent. Accordingly, ASDA is credited with a total of five points; JSU Trustees is awarded three points; EBN, MBIC, and Smile each receives two points; and Covenant, Serendipity, and OTGM are each not credited with any points.[38] ASDA is therefore the tentative selectee in Group 1.
  1. NCE Reserved Allotment Group 2. This group consists of three applications proposing service on vacant Channel 296A at Pima, Arizona, an allotment reserved by means of the third channel reservation standard. The applicants are: Arizona Board of Regents for the Benefit of the University of Arizona (“UA Regents”), World Radio Network, Inc. (“WRN”), and Cochise Community Radio Corporation (“Cochise”). Each applicant satisfies the third channel reservation criteria,[39] and the entire group proceeds to a point system analysis.
  1. UA Regents is the only applicant to certify that it is eligible for points as an established local applicant. WRN is the only applicant to claim two points for diversity of ownership. WRN, however, fails to support its diversity claim, and, accordingly, will not be awarded points under this criterion.[40] No applicant claims points as a statewide network. With respect to technical parameters, UA Regents claims that its proposed 60 dBu contour would encompass 898 square kilometers with a population of 25,787; WRN, 902 square kilometers and 26,982 people; and Cochise, 1,079 square kilometers and 21,223 people. No applicant is eligible for points under the best technical proposal criterion because no applicant proposes to serve both the most area and population, at least 10 percent greater than the next best applicant. Accordingly, UA Regents is credited with a total of three points; WRN and Cochise are each not credited with any points.[41] UA Regents is therefore the tentative selectee in Group 2.
  1. NCE Reserved Allotment Group 3. This group consists of nine applications proposing service on vacant Channel 260C3 at Somerton, Arizona, an allotment reserved by means of the third channel reservation standard. The applicants are: Arizona Western College (“AWC”), Grace Public Radio (“GPR”), Relevant Media, Inc. (“RMI”), Centro Cristiano Vida Abundante, Inc. (“CCVA”), Smile FM (“Smile”), Campesinos sin Fronteras (“Campesinos”), Hispanic Family Christian Network, Inc. (“HFCN”), Yuma Fine Arts Association, Inc. (“YFAA”), and Radio Revista Nuevo Amanecer Ministries, Inc. (“RRNAM”). Each applicant satisfies the third channel reservation criteria[42] and proceeds to the point system analysis.
  1. AWC, RMI, Campesinos, YFAA, and RRNAM each claim points as established local applicants.